Common use of Additional Collateral Matters Clause in Contracts

Additional Collateral Matters. (a) The parties hereto hereby agree that the security interests granted in Sections 3.01(a), 3.01(b), 4.01(a) and 4.01(b) constitute separate and distinct grants of security interests, with such security interests having the priorities set forth in Section 4.01(c). The parties hereto hereby further acknowledge and agree that because of, among other things, their differing rights in the Deposit L/C Collateral, the Obligations (other than the Deposit L/C Obligations) are fundamentally different from the Deposit L/C Obligations and must be separately classified in any plan proposed or adopted in any bankruptcy, insolvency, reorganization or other similar proceeding of any Loan Party under the Bankruptcy Code. To further effectuate the intent of the parties as provided in this paragraph, if it is held that the Obligations (other than the Deposit L/C Obligations) and the Deposit L/C Obligations constitute only one class of secured claims, then the Collateral Agent, on behalf of each of the Secured Parties, hereby acknowledges and agrees that all distributions shall be made as if there were separate classes of secured claims against the Loan Parties in respect of the Collateral (with the effect being that, to the extent that the aggregate value of the Deposit L/C Collateral is sufficient (for this purpose ignoring all Obligations (other than the Deposit L/C Obligations)), the Deposit L/C Secured Parties shall be entitled to receive, in addition to amounts distributed to them in respect of principal, pre-petition interest and other claims, all amounts owing in respect of post-petition interest, fees, costs or charges before any distribution from the proceeds of the Deposit L/C Collateral is made in respect of the Obligations (other than the Deposit L/C Obligations). (b) The Collateral Agent hereby acknowledges and agrees, on behalf of the Secured Parties, that it and each Secured Party (other than any Deposit L/C Secured Party) shall turn over to the Deposit L/C Secured Parties all amounts otherwise received or receivable by the Collateral Agent or such Secured Party from the Deposit L/C Collateral to the extent necessary to effectuate the intent of paragraph (a), even if such turnover has the effect of reducing the claim or recovery of the Collateral Agent or the Secured Parties (other than the Deposit L/C Secured Parties), and that, until turned over to the Deposit L/C Secured Parties, such amounts shall be held in trust for the benefit of the Deposit L/C Secured Parties, shall be segregated from other property or funds of the Secured Parties (other than the Deposit L/C Secured Parties) and shall be forthwith delivered to the Deposit L/C Secured Parties, upon demand in the same form as so received. Any such payment that is paid over to the Deposit L/C Secured Parties pursuant to this Agreement shall be deemed not to reduce any of the Obligations unless and until (and then only to the extent that) the Deposit L/C Obligations have been paid in full in cash; provided that any such payment shall not be deemed to reduce any of the Obligations if, at the time of such payment, an Event of Default has occurred and is continuing. (c) If any Deposit L/C Secured Party shall not consent under Section 363 of the Bankruptcy Code to the use of the Deposit L/C Collateral as cash collateral, the Secured Parties (other than the Deposit L/C Secured Parties) shall not (nor support or instruct any other person to) take a position contrary to the position taken by the Deposit L/C Secured Parties with respect to the use of the Deposit L/C Collateral as cash collateral.

Additional Collateral Matters. (a) The parties hereto Collateral Agent is hereby agree that the security interests granted in Sections 3.01(a), 3.01(b), 4.01(a) and 4.01(b) constitute separate and distinct grants of security interests, with such security interests having the priorities set forth in Section 4.01(c). The parties hereto hereby further acknowledge and agree that because of, among other things, their differing rights in the Deposit L/C Collateral, the Obligations (other than the Deposit L/C Obligations) are fundamentally different from the Deposit L/C Obligations and must be separately classified in any plan proposed or adopted in any bankruptcy, insolvency, reorganization or other similar proceeding of any Loan Party under the Bankruptcy Code. To further effectuate the intent of the parties as provided in this paragraph, if it is held that the Obligations (other than the Deposit L/C Obligations) and the Deposit L/C Obligations constitute only one class of secured claims, then the Collateral Agent, authorized on behalf of each all of the Secured PartiesLenders, hereby acknowledges and agrees that all distributions shall be made as if there were separate classes without the necessity of secured claims against the Loan Parties in respect any notice to or further consent from any Lender, from time to time prior to an Event of the Collateral (with the effect being thatDefault, to take any action with respect to any Collateral which may be necessary to perfect and maintain perfected the extent that security interest in and Liens upon the aggregate value of the Deposit L/C Collateral is sufficient (for this purpose ignoring all Obligations (other than the Deposit L/C Obligations)), the Deposit L/C Secured Parties shall be entitled to receive, in addition to amounts distributed to them in respect of principal, pre-petition interest and other claims, all amounts owing in respect of post-petition interest, fees, costs or charges before any distribution from the proceeds of the Deposit L/C Collateral is made in respect of the Obligations (other than the Deposit L/C Obligations)Collateral. (b) The Lenders hereby authorize the Collateral Agent hereby acknowledges to, and agreesthe Collateral Agent shall, on behalf of the Secured Parties, that it and each Secured Party (other than release any Deposit L/C Secured Party) shall turn over Lien granted to the Deposit L/C Secured Parties all amounts otherwise received or receivable held by the Collateral Agent upon any Collateral (i) upon the payment and satisfaction of all of the Obligations, (ii) constituting property being sold or disposed of in conformance with the requirements of the Credit Agreement and this Agreement (provided that the proceeds of such Secured Party from sale are applied or pledged as required therein and herein) or (iii) if approved, authorized or ratified in writing by the Deposit L/C Required Lenders (or with respect to a release of Collateral to with a value in excess of $15,000,000, all the extent necessary to effectuate the intent of paragraph (aLenders), even if such turnover has the effect of reducing the claim or recovery of . Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent's authority to release particular types or the Secured Parties (other than the Deposit L/C Secured Parties), and that, until turned over to the Deposit L/C Secured Parties, such amounts shall be held in trust for the benefit items of the Deposit L/C Secured Parties, shall be segregated from other property or funds of the Secured Parties (other than the Deposit L/C Secured Parties) and shall be forthwith delivered to the Deposit L/C Secured Parties, upon demand in the same form as so received. Any such payment that is paid over to the Deposit L/C Secured Parties Collateral pursuant to this Agreement shall be deemed not to reduce any of the Obligations unless and until (and then only to the extent that) the Deposit L/C Obligations have been paid in full in cash; provided that any such payment shall not be deemed to reduce any of the Obligations if, at the time of such payment, an Event of Default has occurred and is continuingSection 17. (c) If Upon any Deposit L/C Secured Party sale and transfer of Collateral pursuant to the terms of the Credit Agreement or this Agreement, and upon at least five (5) Business Days' prior written request by the Borrower, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary to evidence the release of the Liens granted to the Collateral Agent for its benefit and the benefit of the Lenders herein or pursuant hereto upon the Collateral that was sold or transferred; provided that (i) the Collateral Agent shall not consent under Section 363 of be required to execute any such document on terms which, in the Bankruptcy Code to Collateral Agent's opinion, would expose the use of the Deposit L/C Collateral as cash collateralAgent, the Secured Parties (other Agents, the Issuing Bank or the Lenders to liability or create any obligation or entail any consequence other than the Deposit L/C Secured Partiesrelease of such Liens without recourse or warranty and (ii) such release shall not (nor support in any manner discharge, affect or instruct impair the Obligations or any other person to) take a position contrary to the position taken Liens upon all interests retained by the Deposit L/C Secured Parties Borrower, including (without limitation) the proceeds of the sale, all of which shall continue to constitute part of the Collateral. In the event of any sale or transfer of Collateral, or any foreclosure with respect to the use any of the Deposit L/C Collateral, the Collateral as cash collateralAgent shall be authorized to deduct all of the expenses reasonably incurred by the Collateral Agent from the proceeds of any such sale, transfer or foreclosure. (d) The Collateral Agent shall have no obligation whatsoever to the other Agents, the Issuing Bank or the Lenders or to any other Person to assure that the Collateral exists or is owned by the Borrower or is cared for, protected or insured or that the Liens granted to the Collateral Agent herein or pursuant hereto have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority, or to exercise or to continue exercising at all or in any manner or under any duty of care, disclosure or fidelity any of the rights, authorities and powers granted or available to the Collateral Agent in this Agreement, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent's own interest in the Collateral and that the Collateral Agent shall have no duty or liability whatsoever to the Lenders, except for its gross negligence or willful misconduct.